—[*1] Amos Weinberg, Great Neck, N.Y., for appellants.

John P. Humphreys, Melville, N.Y. (David R. Holland and Dominic P. Zafonte of counsel), for respondents.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated June 4, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Nadelson, J.), entered April 5, 2005, denying their motion for partial summary judgment.

Ordered that the order dated June 4, 2007 is affirmed, with costs.

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518 [a]; Matter of Leon RR., 48 NY2d 117, 122-123 [1979]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-180 [2007]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2004]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457 [1998]). Thus, the plaintiffs’ motion was properly denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

To the extent that the plaintiffs raise any issue with respect to the defendant’s cross motion for summary judgment dismissing the complaint, that issue is not properly before us, as the cross [*2]motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.

[*1]

Fourth Department, October 10, 2008

APPEARANCES OF COUNSEL

Fessenden, Laumer & DeAngelo, Jamestown (Mary B. Schiller of counsel), for petitioner-appellant.

Mura & Storm, PLLC, Buffalo (Brian C. Clark of counsel), for respondent-respondent.

{**56 AD3d at 131} OPINION OF THE COURT

Centra, J.

I.

The straightforward but apparent issue of first impression in an appellate court in New York is whether the 90-day statute of limitations set forth in CPLR 7511 (a) begins to run on the date on which the arbitrator’s decision was mailed to petitioner or the date on which it was received by petitioner or his or her agent. We conclude that the operative measuring date is the date on which the decision was received by the petitioner or his or her agent, and we therefore conclude that this proceeding was timely commenced.

II.

The undisputed facts establish that petitioner pursued no-fault arbitration to recover personal injury protection benefits for injuries she sustained in a motor vehicle accident on September 26, 2001. The arbitrator issued a decision denying the claim and, upon petitioner’s appeal from that decision, a no-fault master arbitrator affirmed the arbitrator’s decision. The master arbitration award was mailed to the parties on June 13, 2007, and it is undisputed that petitioner’s attorney received the decision on June 18, 2007. Ninety-one days after the award was mailed and 86 days after it was received by petitioner’s attorney, petitioner commenced this CPLR article 75 proceeding seeking to vacate the master arbitration award. In lieu of an answer, respondent moved to dismiss the petition and for costs, contending, inter alia, that the proceeding [*2]was time-barred. Supreme Court granted the motion in part and dismissed the petition, holding that delivery under CPLR 7511 (a) must be construed as the date of mailing rather than the date of receipt of the award. For the reasons that follow, we conclude that the order should be reversed insofar as appealed from.{**56 AD3d at 132}

III.

Article 75 of the CPLR governs review of arbitration proceedings and provides that an application to vacate or modify an arbitration award “may be made by a party within ninety days after its delivery to him [or her]” (CPLR 7511 [a]). The statute does not define “delivery,” but CPLR 7507 provides that the arbitrator “shall deliver a copy of the award to each party in the manner provided in the agreement, or, if no provision is so made, personally or by registered or certified mail, return receipt requested.” An Insurance Department regulation concerning master arbitration procedures provides that “[t]he parties shall accept as delivery of the award the placing of the award or a true copy thereof in the mail, addressed to the parties or their designated representatives at their last known addresses, or by any other form of service permitted by law” (11 NYCRR 65-4.10 [e] [3]).

Petitioner contends that “delivery” under CPLR 7511 (a) must be construed as the actual receipt of the award and that the Insurance Department Regulations governing master arbitration proceedings do not apply to CPLR article 75 proceedings. Respondent, however, contends that Insurance Department Regulations (11 NYCRR) § 65-4.10 (e) (3) specifies that delivery of the master arbitration award is the date on which the award is mailed to the parties, and that the regulation does not conflict with CPLR article 75. We agree with petitioner.

Were we to determine that “delivery” means the actual receipt of the award, then this proceeding must be deemed timely because petitioner’s attorney commenced it 86 days after receiving the award. On the other hand, were we to determine that “delivery” must be deemed the date on which the award was mailed to petitioner’s attorney, then we would agree with the court that this proceeding is time-barred because petitioner’s attorney commenced it 91 days after the award was mailed to him.

IV.

Although, as noted, this appears to be an issue of first impression, we conclude that case law supports the interpretation that delivery must be construed as the date on which the award was received. For example, in Matter of Case v Monroe Community Coll. (89 NY2d 438, 439-440 [1997], rearg denied 89 NY2d 1087 [1997]), the issue before the Court of Appeals was whether service of an arbitration award upon the petitioner’s union representative{**56 AD3d at 133} constituted service upon the petitioner for purposes of measuring the timeliness of an appeal from the award. In determining that the petitioner was indeed in effect thereby served, the Court explained that ” ‘once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed’ ” (id. at 441, quoting Matter of Bianca v Frank, 43 NY2d 168, 173 [1977]). The Court noted that there was no dispute that the arbitrator served the award in accordance with applicable rules, i.e., those of the American Arbitration Association, and the Court concluded that, because the union representative was the designated agent for the petitioner to accept service of the award, the petitioner was deemed to have been served with the award regardless of whether the union representative was an attorney (Case, 89 NY2d at 442). Although not expressly discussing the issue before us, the Court took note of both the date of mailing and the date of receipt, but thereafter relied upon the date of receipt in determining that the petition was not filed within 90 days after service of the award (id. at 443). [*3]

In further support of our decision, we note that several cases have explicitly used the terms “receipt” and “received” in discussing the 90-day period set forth in CPLR 7511 (a) (Matter of McRae v New York City Tr. Auth., 39 AD3d 861, 861 [2007], lv dismissed 9 NY3d 945 [2007] [“A proceeding to vacate an arbitration award must be commenced within 90 days of receipt of the arbitrators’ determination”]; Matter of Pender v New York State Off. of Mental Retardation & Dev. Disabilities, 27 AD3d 756, 756 [2006], lv denied 9 NY3d 805 [2007], rearg denied 9 NY3d 977 [2007] [“(T)he petitioner’s counsel received a copy of the arbitrator’s determination, at the latest, on September 30, 2002, the operative date from which to measure the 90-day statute of limitations”]; Matter of Lumbermens Mut. Cas. Co. v City of New York, 5 AD3d 684, 685 [2004] [“(T)he documentary evidence . . . established that the petitioner received the arbitrator’s decision no later than November 9, 2001 (and, because) this proceeding was commenced more than 90 days thereafter, the Supreme Court properly dismissed it as untimely”]; Werner Enters. Co. v New York City Law Dept., 281 AD2d 253 [2001], lv denied 97 NY2d 601 [2001] [“Vacatur of the subject awards was properly denied, since the proceeding was commenced more than 90 days after the awards were delivered to petitioner, as evidenced by the letter of petitioner’s{**56 AD3d at 134} counsel to the arbitration forum acknowledging receipt of the award”]).

Less recent cases have used language that essentially is analogous to the terms “receipt” or “received” (Lopez v Coughlin, 220 AD2d 349, 350 [1995] [“Petitioner’s application challenging the arbitration award was properly dismissed for failure to bring it within 90 days after service of the award on petitioner’s attorneys”]; Matter of Malatestinic v Board of Educ. of City of N.Y., 132 AD2d 661, 662 [1987] [“(The) statute began to run on . . . the date upon which the petitioner was originally notified of the denial of her request”]; Matter of Levy [Allstate Ins. Co.], 63 AD2d 982, 983 [1978] [“(The operative date was date on which the arbitration) award . . . was transmitted to the parties”]). We acknowledge that, in Robinson v City of New York (237 AD2d 127, 128 [1997], lv denied 90 NY2d 801 [1997]), the First Department held that the “[p]etitioner was properly deemed served with the arbitration award upon its mailing to the attorney who represented her at the arbitration hearing.” The issue in that case, however, was whether the attorney’s delay in forwarding the award to the petitioner served to extend the petitioner’s 90 days under CPLR 7511 (a) to move to vacate the award, not whether delivery of the award was the date on which it was mailed to the attorney.

In attempting to distinguish the cases that use the word “received,” respondent contends that those cases involved labor arbitration awards rather than no-fault master arbitration awards and thus are not governed by Insurance Department Regulations (11 NYCRR) § 65-4.10. We reject that contention, for two reasons. First, 11 NYCRR 65-4.10 (e) (3) simply sets forth the method of the delivery of the award to the parties. It does not define “delivery” as it is used in CPLR 7511 (a). Second, we agree with petitioner that, once a party commences a proceeding pursuant to CPLR article 75, the procedures set forth in that article control over those set forth in the Insurance Department Regulations. Thus, even if 11 NYCRR 65-4.10 (e) (3) constitutes an attempt to define “delivery” under CPLR 7511 (a), such an attempt would be improper. Were we to accept respondent’s contention, the 90-day statute of limitations under CPLR 7511 (a) would have different measuring dates, depending on what type of arbitration was sought to be reviewed, and that would be an untenable distinction.{**56 AD3d at 135}

V.

Accordingly, we conclude that the order insofar as appealed from should be reversed, respondent’s motion denied in its entirety and the petition reinstated.

Hurlbutt, J.P., Smith, Green and Pine, JJ., concur.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in its entirety and the petition is reinstated.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered May 14, 2007. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by plaintiff’s employee and various documents annexed thereto. In opposition to plaintiff’s motion, defendant argued, inter alia, that the affidavit of plaintiff’s employee failed to lay a proper foundation for admission of the documents attached to plaintiff’s moving papers as business records pursuant to CPLR 4518 (a). The court below granted plaintiff’s motion for summary judgment, finding that plaintiff made a prima facie case and that defendant failed to raise a triable issue of fact. The instant appeal by defendant ensued.

Since the affidavit of plaintiff’s employee did not refer to the documents attached to plaintiff’s moving papers, let alone assert that they are plaintiff’s business records (see CPLR 4518 [a]), plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue. [*2]

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: October 09, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 15, 2007. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

Order modified by providing that defendant’s motion for summary judgment is granted to the extent of dismissing the second cause of action and by further providing that plaintiff’s cross motion for summary judgment is denied with respect to the second cause of action; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing as premature both plaintiff’s first cause of action (regarding plaintiff’s assignor Jonnise Atwater) and second cause of action (regarding plaintiff’s assignor Cossandra Cogdell), and plaintiff cross-moved for summary judgment. The court below granted plaintiff’s cross motion and denied defendant’s motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavits of the billers employed by a third party, submitted in support of plaintiff’s cross motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op [*2]50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]).

Defendant also contends that its motion seeking summary judgment dismissing the complaint as premature should have been granted since verification requested of plaintiff was still outstanding. Specifically, defendant claimed that plaintiff failed to provide it with an application for motor vehicle no-fault benefits for both assignors, hospital records for Ms. Atwater, and an assignment of benefits form executed by Ms. Cogdell.

Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted on behalf of a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant acknowledged receipt of hospital facility forms for both Ms. Atwater and Ms. Cogdell. Accordingly, defendant was not entitled to summary judgment dismissing the complaint on the ground that plaintiff failed to provide it with applications for motor vehicle no-fault benefits.

Furthermore, with respect to Ms. Atwater’s hospital records, plaintiff’s submissions, consisting of a certified mail receipt and a signed return receipt postcard, each bearing the same number and a notation to the relevant medical records, created a presumption of their receipt (see e.g. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]). Since defendant failed to rebut said presumption (id.), it did not demonstrate that plaintiff failed to respond to this request for verification. Therefore, it cannot be said that defendant was entitled to summary judgment, with respect to plaintiff’s first cause of action, on the ground that plaintiff failed to provide it with Ms. Atwater’s hospital records. Nor did defendant raise a triable issue of fact sufficient to defeat plaintiff’s cross motion. Accordingly, the court below properly granted plaintiff’s cross motion for summary judgment with respect to plaintiff’s first cause of action.

However, with respect to the verification request seeking a completed assignment of benefits form executed by Ms. Cogdell, the record shows that defendant timely mailed the verification request and follow-up request seeking said assignment of benefits form, and that plaintiff did not respond to said requests. Contrary to plaintiff’s assertions, the affidavit of defendant’s no-fault litigation examiner was sufficient to demonstrate that said requests were properly mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and the follow-up request was in proper form (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]). While plaintiff argues that the follow-up request was defective in that it failed to identify “in writing the missing verification” (see Insurance Department Regulations (11 NYCRR) § 65-3.6 [b]), we find that this contention lacks merit because the initial and the follow-up request were both seeking verification from plaintiff and, if plaintiff was uncertain as to what information defendant’s follow-up request was seeking, plaintiff should have resolved the issue by communicating with defendant rather than ignoring [*3]the follow-up request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire. Ins. Co., 262 AD2d 553 [1999]; Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50500[U] [App Term, 9th & 10th Jud Dists 2007]).

Since an insurer is entitled to receive verification of all relevant information requested (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), defendant demonstrated that plaintiff’s second cause of action was premature. Therefore, defendant was entitled to summary judgment dismissing plaintiff’s second cause of action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 09, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000, and granted plaintiff Carnegie Hill Orthopedic Services partial summary judgment in the principal sum of $41,157.88.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiffs established prima case their entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiff Devonshire established prima case its entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008

Civil Court of the City of New York, Kings County

105504/2004

Jaffe & Koumourdas

40 Wall Street -12th Floor

New York, NY 10005

Attorneys for Defendant

Moshe D. Fuld, P.C.

38 west 32nd Street -7th Floor

New York, NY 10001

Attorneys for Plaintiff

George J. Silver, J.

In this action to recover first-party no-fault benefits, interest and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations, defendant Country-Wide Insurance Company (hereinafter defendant) moves pursuant to CPLR § 5015 [a] [1] [2] and [3] for an order vacating the judgment entered against it.

Procedural Background

This action was commenced by plaintiff Deajess Medical Imaging PC (hereinafter plaintiff) by service of a summons and complaint upon defendant on or about October 21, 2004. Defendant served its answer on November 16, 2004. On November 4, 2005 summary judgment was granted in plaintiff’s favor as to all of plaintiff’s claims and judgment was entered against defendant in the amount of $18,694.39 plus statutory interest and attorney’s fees. In granting plaintiff’s motion for summary judgment, the motion court held that plaintiff had established its prima facie entitlement to no-fault benefits and that defendant failed to submit “admissible proof of any issue of fact.” The motion court rejected defendant’s argument that plaintiff’s motion was premature because discovery was still outstanding and held that defendant failed to annex exhibits in proper form to establish that discovery demands were served and not complied with. Defendant moved to reargue plaintiff’s summary judgment motion and on July 10, 2006, the return date of defendant’s motion, the parties entered into a written stipulation of settlement. The stipulation resolved defendant’s motion to reargue as follows: “[p]laintiff agrees to vacate the judgment for assignor Trinece Summer, defendant agrees to pay the remaining claims as per the Court’s Order of November 4, 2005 within 30 days inclusive of interest up until the day of payment.” The stipulation, which was a clear and unambiguous statement of the parties’ intent, was properly signed by the attorneys of record who were acting in an adversarial relationship. [*2]The stipulation was not so-ordered by the Court. Defendant now moves to have the judgment entered against it pursuant to the November 4, 2005 order vacated on the ground that newly discovered evidence exists which “if introduced at trial would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404” (CPLR § 5015 [a] [2]). The newly discovered evidence cited by defendant includes a federal case involving Robert Scott Schepp, M.D., New York State appellate case law involving the plaintiff, a news article from Law.com, as well as the Andrew Carothers, M.D., P.C. trial in the New York City Civil Court, Richmond County, all of which defendant argues establish that plaintiff is fraudulently incorporated. Defendant also agues that the judgment was the product of “fraud, misrepresentation, or other conduct of an adverse party” (CPLR § 5015 [a] [3]) and that there was no meeting of the minds when the parties entered into the written stipulation of settlement. Finally, defendant contends that this case is subject to a stay issued by the Supreme Court, Nassau County in a separate action in which plaintiff and defendant are both parties (hereinafter the Nassau County action).

In opposition plaintiff contends that stipulations of settlement are favored by the courts and should be vacated only upon a showing of that the settlement was the product of fraud, overreaching, mistake or duress and argues that defendant has failed to make such a showing. Plaintiff also contends that this action has not been stayed by Nassau County action.

Discussion

It is well settled that stipulations of settlement are judicially favored and should not be lightly set aside (Cooper v Hempstead Gen. Hosp., 2 AD3d 566 [2d Dept]). “This is all the more so in the case of open court’ stipulations within CPLR § 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v State of New York, 64 NY2d 224, 230; 474 NE2d 1178; 485 NYS2d 510 [1984] [citations omitted]). Stipulations of settlement are independent contracts that are subject to the principles of contract law (Hannigan v Hannigan, 2008 NY Slip Op 3589 [2d Dept]) and “[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock, 64 NY2d 224, 230). A “party seeking reformation of a contract by reason of a mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party’s fraudulent misrepresentation” (Moshe v Town of Ramapo, 2008 NY Slip Op 7238 [2d Dept] quoting Yu Han Young v Chiu, 49 AD3d 535, 536, 853 NYS2d 575 [2d Dept 2008]). “[E]ven a stipulation which was improvident will not be set aside unless it is manifestly unfair or unconscionable” (Cavalli v Cavalli, 226 AD2d 666, 667, 641 NYS2d 724 [2d Dept 1996]; see Wilutis v Wilutis, 184 AD2d 639, 640, 587 NYS2d 171 [2d Dept 1992]).

The only evidence offered by defendant in support of its claim that the settlement was procured through fraud or collusion are the conclusory allegations contained in the affirmations of defendant’s attorney. Bare, unsubstantiated allegations such as “[t]he purported judgment premised upon plaintiff’s misrepresentations”^[FN1] and “[p]laintiff obtained its judgment under false [*3]pretenses”^[FN2] and “[t]he judgment was obtained under collusion by the plaintiff and its attorney since plaintiff’s attorney was well aware of several litigations pending against their client based on their client’s corporate structure”^[FN3] are insufficient to vacate the stipulation as a product of collusion or fraud. Such speculation also fails to make the requisite showing to reform the stipulation on the ground that it was executed under a mutual or unilateral mistake (see M.S.B Dev. Co., Inc. v Lopes, 38 AD3d 723 [2d Dept 2007] [A party seeking reformation must show clearly that there has been a mistake] [emphasis added]). Moreover, defendant, a sophisticated insurer well-versed in no-fault litigation and represented by able and competent counsel at the time the stipulation was entered into, does not claim that the settlement was a product of duress or that its counsel lacked the authority to enter into the settlement.

Defendant’s claim that the stipulation of settlement should be vacated based upon newly discovered evidence of plaintiff’s allegedly fraudulent incorporation is also without merit.

Plaintiff and defendant entered into a second stipulation, so-ordered on March 26, 2007, in the Nassau County action in which defendant agreed that plaintiff’s right “to enforce voluntary settlements that have been entered into with any of the Insurers,” including defendant, would not be impaired. As a party to the Nassau County action defendant was certainly aware on March 26, 2007 that the plaintiff professional corporation may be fraudulently incorporated. Despite that awareness, defendant nevertheless agreed that plaintiff could freely enforce any and all voluntary settlements which plaintiff had previously entered into. This concession by defendant to plaintiff belies defendant’s argument that had it been aware of plaintiff’s allegedly fraudulent incorporation on July 10, 2006 it would not have entered into the stipulation at issue here. “Courts will not set aside a stipulation . . . simply because, in hindsight, a party decides that the agreement was improvident” (Town of Clarkstown v. M.R.O. Pump & Tank, Inc., 287 AD2d 497, 498, 731 NYS2d 231 [2d Dept 2001]). Therefore, because defendant has failed to meet any of the criteria necessary for the court to vacate the parties’ voluntary stipulation of settlement, defendant’s Order to Show Cause is denied in its entirety.

This constitutes the decision and order of the Court.

Dated: October 7, 2008

George J. Silver, J.C.C.

Jaffe & Koumourdas

40 Wall Street -12th Floor

New York, NY 10005

Attorneys for Defendant

Moshe D. Fuld, P.C.

38 west 32nd Street -7th Floor

New York, NY 10001

Attorneys for Plaintiff

Footnotes

Footnote 1: Defendant’sAffirmation in Support.

Footnote 2: Defendant’sAffirmation in Reply.

Footnote 3: Id.

Civil Court of the City of New York, Kings County

165871/2006

Counsel for Plaintiff:

Gary Tsirelman PC

55 Washington Street, Suite 606

Brooklyn, NY 11201

Tel.: (718) 438-1200

Counsel for Defendant:

Votto & Cassata, LLP

60 Bay Street, 3rd Floor

Staten Island, NY 10301

Tel.: (718) 720-2877

Peter P. Sweeney, J.

In this action pursuant to Insurance Law § 5101 et seq to recover assigned first-party no-fault benefits claimed to be due and owing under a policy of insurance issued by the defendant, defendant moves for summary judgment dismissing the action on the ground that plaintiff did not commence the action within the six-year statute of limitations contained in CPLR § 213[2]. Plaintiff cross-moves for summary judgment.

In support of its motion for summary judgment, defendant submitted admissible proof establishing that it received the underlying claim for first-party no-fault benefits on November 15, 2000, that it had issued a denial of the claim on November 29, 2000 on the ground that plaintiff’s assignor failed to attend an examination under oath (“EUO”) and that it had mailed a [*2]copy of the denial of claim to the plaintiff on the same day it was issued. Plaintiff commenced the action on December 1, 2006. Defendant argues that pursuant to CPLR § 213 [2], plaintiff was required to commence the action within six years from November 29, 2000 and that the commencement of the action on December 1, 2006 was untimely.

It is now fairly well settled that an action to recover assigned first-party no-fault benefits under a policy of insurance is fundamentally a breach of contract action subject to the six-year statute of limitations contained in CPLR §213[2] (see Mandarino v. Travelers Property Cas. Ins. Co., 37 AD3d 775, 831 NYS2d 452 [2nd Dep’t 2007]; Benson v. Boston Old Colony Ins. Co., 134 AD2d 214, 215, 521 NYS2d 14 [1st Dep’t1987], lv. denied 71 NY2d 801, 527 NYS2d 767, 522 NE2d 1065 [1988]; Travelers Indem. Co. of Connecticut v. Glenwood Medical, P.C., 48 AD3d 319, 319-320, 853 NYS2d 26, 26 [1st Dep’t 2008] ). The statute of limitations in a breach of contract action begins to run at the time the contract is breached, which in this case was when benefits become overdue (see Benson, 134 AD2d at 215; New Era Acupuncture, P.C. v. MVAIC, 18 Misc 3d 139(A), 2008 NY Slip Op. 50353(U) [App Term 2nd & 11 Jud Dists]. Benefits became overdue when the defendant failed to pay the claim within 30 days of November 15, 2000, when it received proof of the claim (see Insurance Law § 5106[a]; NYCRR § 65-3.8; Benson, 134 AD2d at 215; Micha v. Merchants Mutual Insurance Company, 94 AD2d 835, 463 NYS2d 110 [3rd Dep’t 1983] ). The commencement of the action on December 1, 2000 was therefore timely.

The fact that the defendant may have repudiated the contract on November 29, 2000 when it issued a denial of the claim and mailed a copy of the denial to the defendant does alter this result. Under the doctrine of anticipatory breach, where one party clearly and unequivocally repudiates his contractual obligations under a contract prior to the time performance is required, the non-repudiating party may deem the contract breached and immediately sue for damages (see American List Corp. v. U.S. News & World Report, 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161 [1989]; De Lorenzo v. Bac Agency Inc., 256 AD2d 906, 908, 681 NYS2d 846, 848 [3rd Dep’t 1998]; Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463, 393 NYS2d 925, 362 NE2d 558 [1977]).

While the plaintiff may have been entitled to bring the action under the doctrine of anticipatory breach when the defendant denied the claim, even though the 30 day period in which defendant had to pay the claim had yet to expire, plaintiff was well within its rights to elect to keep the contract in force and await the designated time for performance before bringing suit (Ga Nun v. Palmer, 202 NY 483, 493, 96 N.E. 99 [1911]; see also, Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 AD2d 262, 266, 629 NYS2d 382, 384 [1st Dep’t 1995] ). As the Court of Appeals wrote in Ga Nun: “The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait until the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer” (Ga Nun, 202 [*3]NY at 490-491, 96 N.E. at 101 – 102, citing Hochster v. De la Tour, 2 Ellis & Blackburn, 678). For the above reasons, defendant’s motion for summary judgment is DENIED.

Turning to plaintiff’s cross-motion for summary judgment, in Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co.,14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006] ) the Appellate Term held that absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). The Dan Medical Court further held that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v. General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006] ).

Here, plaintiff’s submissions are devoid of any admissible proof, such as an affidavit from someone familiar with plaintiff’s business practices, establishing the admissibility of the claim form as a business record. Accordingly, plaintiff did not establish its prima facie case of entitlement to summary judgment notwithstanding defendant’s admission that it received the claim on November 15, 2000. Plaintiff’s failure to make out a prima facie case of entitlement to summary judgment mandates the denial of the motion regardless of the sufficiency of opposing papers (Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985] ).

For the above reasons, it is hereby

ORDERED that defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment are DENIED.

This constitutes the decision and order of the court.

Date: October 7, 2008________________________________

Peter P. Sweeney

Civil Court Judge

—[*1] Jasne & Florio, LLP, White Plains, N.Y. (Hugh G. Jasne of counsel), for appellant.

Goldberg Segalla, LLP, White Plains, N.Y. (Kevin Burns of counsel), for respondent.

In an action to determine the defendant’s claims for no-fault benefits de novo, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.H.O.), entered June 14, 2007, which, after a nonjury trial, inter alia, dismissed his claims for medical expenses and lost earnings.

Ordered that the judgment is modified, on the law, by deleting the third, fourth, and sixth decretal paragraphs thereof, and so much of the seventh and eighth decretal paragraphs as dismissed the defendant’s claims for medical expenses related to his hospitalization from April 10, 1997 through April 12, 1997; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the defendant’s claims for medical expenses related to his hospitalization from April 10, 1997 through April 12, 1997, are reinstated, and the matter is remitted to the Supreme Court, Orange County, for further proceedings to determine the value of the defendant’s medical expenses related to his hospitalization from April 10, 1997, through April 12, 1997.

A no-fault arbitration tribunal twice concluded that the defendant James Stack was entitled to benefits arising from an automobile accident. Subsequently, the plaintiff, State Farm Automobile Insurance Company (hereinafter State Farm) commenced a de novo plenary action seeking a determination that medical expenses for Stack’s hospitalization were for a condition unrelated to the accident and that Stack failed to demonstrate his entitlement to lost earnings. After a nonjury trial, the Supreme Court determined, inter alia, that State Farm properly denied Stack’s claim for medical expenses as unrelated to the accident [*2]and that Stack failed to demonstrate his entitlement to lost earnings within the meaning of the no-fault statute. Stack contends that the Supreme Court’s judgment in favor of State Farm was not warranted by the facts.

As this case was tried without a jury, this Court’s authority is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Upon our review of the record, we find that the evidence did not support the determination of the Supreme Court that Stack’s condition was not causally related to the accident.

An insurer seeking to deny no-fault benefits on the basis that a claimant’s condition is not causally related to an accident “has the burden to come forward with proof in admissible form to establish the . . . evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999]). The testimony of State Farm’s expert witness, an anesthesiologist and pain management specialist, that his opinion was based solely upon a hospital discharge summary and insurance claim form, rendered his opinion speculative and of little probative value (see Gorden v Tibulcio, 50 AD3d 460 [2008]).

In contrast, the testimony of Stack’s expert witness, a neurologist who based his opinion upon his examination of Stack and his review of Stack’s relevant medical records, including, inter alia, CT scans and magnetic resonance imaging, and determined that Stack’s symptoms first appeared within two weeks of the accident and progressively worsened, was sufficient to establish that Stack’s condition was causally related to the accident (see Scudera v Mahbubur, 299 AD2d 535, 536 [2002]).

As to Stack’s claim for lost earnings, the evidence supported the Supreme Court’s determination that he failed to demonstrate that he sustained a compensable lost wage claim within the no-fault statute (see Konstantatos v County of Suffolk, 174 AD2d 653 [1991]). Although a party may recover lost profits while self-employed (see Young v Utica Mut. Ins. Co., 86 AD2d 764 [1982]), Stack’s testimony, that after the accident he was unable to maintain his real estate business and stock market portfolio in the manner to which he was accustomed, was insufficient in the absence of financial records, such as tax returns, to establish his alleged lost earnings with reasonable certainty (see Thomas v Puccio, 270 AD2d 480 [2000]). Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Nancy S. Linden (Bruno, Gerbino & Soriano, LLP, Melville, N.Y. [Charles W. Benton], of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 25, 2008, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 10, 2007, in its favor and against the defendant in the principal sum of $51,585.52, upon the defendant’s failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

Service upon the defendant was effectuated through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance pursuant to Insurance Law § 1212 (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]). Although the defendant’s motion was made pursuant to CPLR 5015 (a) (1), under the circumstances of this case, it may be treated as a motion made under CPLR 317 as well (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]).

The defendant met its burden of showing that it did not receive actual notice of the summons [*2]in time to defend with an affidavit of its claims manager detailing its standard office practice concerning the handling of summonses and complaints, and asserting that the summons and complaint in this action was not received until after the entry of judgment (see Marine v Federal Ins. Co., 293 AD2d 721 [2002]). The plaintiff’s proof was insufficient to rebut that showing (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Moreover, the defendant established that it may have a meritorious defense to the action (see Taieb v Hilton Hotels Corp., 60 NY2d 725, 727 [1983]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]). Accordingly, the defendant’s motion to vacate the clerk’s judgment entered upon its failure to appear or answer was properly granted. Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.